Wright v Commonwealth of Australia

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4814 of 2000

CARL HENNING WRIGHT (as Executor of the Will of LINDSAY JOHN STAFFORD – deceased)	Plaintiff
v
COMMONWEALTH OF AUSTRALIA	Defendant

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	1, 18, 21, 22, 23, 24, 25, 28 February; 1, 3, 4 March and 17 May 2005
DATE OF JUDGMENT:	22 June 2005
CASE MAY BE CITED AS:	Wright v Commonwealth of Australia
MEDIUM NEUTRAL CITATION:	[2005] VSC 200

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Torts – collision between HMAS Melbourne and HMAS Voyager in 1964 – whether injuries sustained – post traumatic stress disorder – nature of that condition – quantum of damages.

Limitation of Actions – whether s. 5(1A), Limitation of Actions Act 1958 applicable – whether post traumatic stress disorder a “disease or disorder contracted by” the victim.

Limitation of Actions – plea action statute-barred by s. 5(1)(a), Limitations of Actions Act 1958 – pleas in reply that the defendant was estopped from relying on that provision, or else that right to rely upon it had been waived – estoppel unsound in principle and not supported by the evidence – no waiver.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. H. Kennan, SC and Mr K. D. Mueller	Hollows Lawyers
For the Defendant	Mr T. J. Casey, QC and Mr A. J. Moulds	Australian Government Solicitor

TABLE OF CONTENTS

Statement of the Case........................................................................................................................ 1

Non-Contentious Material............................................................................................................... 4

Was the Collision a Cause of the Plaintiff Suffering PTSD?.................................................. 12

The Plaintiff.................................................................................................................................. 17

Service and sport before the collision....................................................................................... 18
Family and social relationships before the collision................................................................. 19
The collision and its aftermath................................................................................................. 19
Work, family and social relationships after the collision. Symptoms allegedly experienced.. 23

Mrs Stafford................................................................................................................................. 31
Mrs Wright................................................................................................................................... 34
Robbins......................................................................................................................................... 37
Lincoln.......................................................................................................................................... 38
Passmore....................................................................................................................................... 41
Solomon........................................................................................................................................ 43
McCracken................................................................................................................................... 43
Swan.............................................................................................................................................. 46
Dr Fellows Smith......................................................................................................................... 47
Dr Stain......................................................................................................................................... 51
Professors McFarlane and Hopwood....................................................................................... 54
Dr Milton...................................................................................................................................... 59
Professor Bryant.......................................................................................................................... 67
Dr Bell........................................................................................................................................... 73
Professor Burrows....................................................................................................................... 76
Professor Shalev.......................................................................................................................... 77
Conclusions.................................................................................................................................. 79

Damages............................................................................................................................................. 87

Damages for Pain and Suffering and Loss of Enjoyment of Life......................................... 87
Economic loss damages.............................................................................................................. 88
Conclusions.................................................................................................................................. 98

PTSD: The Nature of the Condition............................................................................................ 98

Section 5(1A) of the Limitation Act............................................................................................ 112

Estoppel............................................................................................................................................ 120

Aspects of the Pleading............................................................................................................ 121

The duty alleged by paragraph 2(a)....................................................................................... 121
Paragraph 2(f) of the Reply.................................................................................................... 123
Paragraph 2(h)(vi) of the Reply............................................................................................. 124
An unpleaded detriment........................................................................................................ 125

Conceptual Aspects of the Pleaded Estoppel....................................................................... 125
The Estoppel considered by reference to the Evidence....................................................... 132

The assumption that the plaintiff was forbidden to speak to anyone about the collision...... 133
The assumptions that the plaintiff would be treated by the defendant for any injuries which he suffered, that he was not injured in the collision and that it was acceptable for him to drink alcohol in order to forget the collision.................................................................................................................. 145

Waiver............................................................................................................................................... 150

Summary.......................................................................................................................................... 150

HIS HONOUR:

Statement of the Case

Lindsay John Stafford was born on 17 November 1929 and died on 7 October 2004. He commenced a proceeding by Writ filed 28 March 2000 against the Commonwealth of Australia. His claim was for damages for psychiatric injuries which he allegedly sustained in consequence of the collision between HMAS Melbourne and HMAS Voyager on the evening of 10 February 1964. At the time of the collision, Mr Stafford was a Chief Naval Shipwright on board Melbourne.

By his Further Amended Statement of Claim (“the Statement of Claim”), Mr Stafford (conveniently “the plaintiff”, the proceeding being continued by his executor pursuant to s. 29 of the Administration and Probate Act 1958) particularised his injuries as follows:

“Causing, aggravating, accelerating, exacerbating and or resulting in the future deterioration of the following:
(a) Post traumatic stress disorder.
(b)Stress, anxiety, nervousness and psychological reaction resulting in alcohol addiction.

(c)       Depression.
(d)      Development of acid reflux and indigestion.
(e)       Severe shock.
(f)       Anxiety disorder.
(g)      Psychiatric disorder.”

Despite the breadth (and sometimes repetition) of those Particulars, the plaintiff’s case at trial focussed upon the allegation that he had suffered post traumatic stress disorder (“PTSD”), and that alcohol addiction was a related consequence of that condition. The plaintiff did not pursue a claim that the collision had been a cause of him developing acid reflux and indigestion; nor did he pursue a claim that his injuries included, discrete from PTSD, either depression or an anxiety disorder. Finally, whilst the Particulars were cast in terms of

“causing, aggravating, accelerating and or resulting in the future deterioration”

of various conditions, the plaintiff’s case, unequivocally, was that the collision was a cause of him developing PTSD and its related sequelae.

Further by his Statement of Claim the plaintiff alleged[1] that:

“9.The injuries referred to in paragraph 6 hereof are a disease or disorder contracted by the deceased within the meaning of s. 5(1A) of the Limitation of Actions Act 1958 and the deceased first knew that he suffered such injuries and that they were caused by and resulted from the incident referred to in paragraph 3 hereof in or about 2000.”

[1]This was the final formulation, framed in light of Clark v Stingel [2005] VSCA 107

By its Amended Defence the defendant admitted that its negligent acts and omissions were responsible for the collision. It denied that the collision was a cause of the plaintiff sustaining any of the injuries which he alleged. It did not admit that the plaintiff’s plea that each of his alleged injuries was a disease or disorder contracted by the plaintiff within s. 5(1A) of the Limitation of Actions Act 1958 (“the Limitation Act”); or, if any of them were such a disease or disorder, that the plaintiff first knew he had suffered such injuries and that they were caused by the collision in or about 2000.

The defendant further pleaded that the plaintiff’s action was statute-barred by virtue of s. 5(1)(a) of the Limitation Act.

By his Reply the plaintiff pleaded that the defendant was estopped from relying upon s. 5(1)(a) of the Limitation Act; or else had waived right of reliance. The circumstances pleaded in support of the estoppel and alternatively waiver need not be mentioned now.

The upshot of the pleadings, bearing in mind the way in which the trial was conducted, was this: the defendant admitted that it had owed the plaintiff a duty of care to act reasonably to prevent the plaintiff suffering injury, including psychiatric injury. It admitted breach of duty. It denied that the plaintiff had suffered any psychiatric injury. It denied the plaintiff’s allegation that injuries sustained fell within s. 5(1A) of the Limitation Act. Rather, it pleaded, any injuries sustained were governed by the operation of s. 5(1)(a) of the Limitation Act, and were statute-barred. To this last plea, the plaintiff responded that the defendant was estopped from relying on s. 5(1)(a); or else had waived reliance.

From an evidentiary point of view, the key questions in dispute were thus:

·Whether the plaintiff had suffered any and what injuries in consequence of the collision.
·Whether any such injuries constituted “disease or disorder contracted by” the plaintiff within s. 5(1A) of the Limitation Act.
·If any such injuries did constitute “disease or disorder contracted by” the plaintiff, when it was that the plaintiff first knew of the matters referred to in paragraphs (a) and (b) of s. 5(1A).
·Whether the matters relied upon by the plaintiff in support of the pleas of estoppel and waiver had been made out.

The last-mentioned issue implies, as was the case, upon an assumption that the plaintiff had suffered some or all of the injuries which he alleged, that unless s. 5(1A) applied in respect of such injuries, the same were inevitably statute-barred except if the defendant was precluded from reliance on s.5(1)(a).

From the standpoint of legal theory, the matters in debate were:

·The meaning of “disease or disorder contracted by” and “knows” in s. 5(1A).
·The validity of the conceptual basis of the alleged estoppel.[2]

[2]Although, as I have said, the Reply pleaded that the circumstances relied upon in support of the estoppel constituted a waiver, no mention at all was made of waiver in counsel’s closing submissions.

Pausing for a moment, this should be noted. At trial’s end the defendant maintained denial that PTSD should be characterised as a “disease”. But it accepted that the condition should properly be described as a “disorder”. According to the defendant’s submission there were two reasons why, nonetheless, s. 5(1A) did not assist the plaintiff. First, PTSD was not a disorder “contracted by” the plaintiff as that concept had been explained by Eames JA for the majority in Clark v Stingel[3]. Second, the plaintiff first knew that he had suffered the injury, and that it was caused by the defendant’s default, more than 6 years before the proceeding was brought.
[3]Citation at Footnote 1

Non-Contentious Material

The plaintiff was born in Tasmania in November 1929. He was the second– youngest of seven children. Four of his siblings, in due course, joined the Services.

The plaintiff left school in November 1943 and began a cabinet-maker apprenticeship. As a matter of choice he would have enlisted in the Navy before completing his apprenticeship; but, in what he eventually recognised was a wise decision, his employer prevented him doing so.

In the event, the plaintiff completed his apprenticeship and worked as a tradesman for a year before enlisting in the Navy on 13 February 1951, aged 21. As a qualified tradesman he received accelerated promotion after initial training. Initially he was classified as a “joiner”. When the “shipwright” classification was introduced, he went into that stream. His promotions were in the minimum time. By February 1963 he had risen to the rank of Acting Chief Naval Shipwright. The position, equivalent to Acting Chief Petty Officer, was confirmed on 8 February 1964 – that is, two days before the collision.

The plaintiff married on 30 July 1955. His wife had herself been in the Navy. In accordance with the requirements of the day, it was necessary for her to leave the Service when she and the plaintiff married.

There were two children of the marriage – Annette, born 16 May 1956; and Craig, born 27 August 1958.

The plaintiff’s initial enlistment with the Navy was for a six year period. As from 13 February 1957, he re-enlisted for a further six year period. Effective 2 November 1961, he enlisted for a little over four years. Effective 13 February 1966, he re-enlisted for a five year period. In total, then, his enlistments were for periods totalling 20 years. After 20 years’ service a serviceman gained a pension entitlement.

The plaintiff was posted to Melbourne from 28 December 1962. Before that his postings had been as follows:

o   Cerberus 13 February 1951 -          4 August 1952

o   Melville 5 August 1952 -          28 July 1953

o   Penguin 29 July 1953 -          14 January 1954

o   Cerberus 15 January 1954 -          23 September 1954

o   Anzac 24 September 1954 -          26 January 1957

o   Leeuwin 27 January 1957 -          24 March 1957

o   Nirimba 25 March 1957 -          7 April 1959

o   Tarangau 8 April 1959 -          10 April 1961

o   Albatross 11 April 1961 -          8 July 1962

o   Nirimba 9 July 1962 -          2 September 1962

o   Albatross 3 September 1962 -          27 December 1962

Each of those postings, save for Anzac, was shore-based. Melville was a station in the Northern Territory, Penguin was in New South Wales, Tarangau was a base on Manus Island, Nirimba was in New South Wales, and Albatross was the Naval Air Station at Nowra in New South Wales.

On Melbourne, the plaintiff had the supervision of a considerable number of men – usually 6 - 8 shipwrights and 12-15 apprentices, the latter group being subject to regular change.

Following the collision, the plaintiff remained posted to Melbourne until 8 December 1964. He was then posted to HMAS Leeuwin, a shore-based station at Perth. There he remained until 11 January 1968, when he was posted to HMAS Sydney. He remained in that posting until 5 January 1970, when he was again posted to Leeuwin. There he remained until his discharge on 12 February 1971.

In the period that he was posted to Sydney, that vessel undertook six trips to Vietnam, acting as a troop and materials carrier. Four of the trips were in 1968, two in 1969.

The plaintiff and his family lived in Perth during the periods that he was posted to Leeuwin. His family remained in Perth when he was posted to Sydney. The family continued to live in Western Australia after his discharge. All its members continued to do so up to the time when the plaintiff died.

The plaintiff’s Certificate of Service[4] included reports made by Divisional Officers in the period 2 December 1954 – 23 December 1964. Reports made up to the time of the collision were glowing in their praise of the plaintiff.[5] There was no hint that the plaintiff was hard on his men, or was disrespectful of his superiors; rather the contrary.[6] The final report in the series, dated 23 December 1964, was somewhat different in content. Made by then Shipwright Sub-Lieutenant McCracken, the report said this:

“Has performed duties as Chief satisfactorily and has supervised staff very well. Appears to resent suggestions regarding changes on routines involving staff and work to be carried out. Consider he will appreciate this advice as he progresses.”

The defendant called McCracken at trial. He and the plaintiff gave oral evidence pertaining to that entry; of which evidence, more later.

[4]Exhibit DB1

[5]See, example, entries dated 6 December 1957, 3 August 1959, 17 June 1960, 31 August 1961, 22 June 1962

[6]See entries dated 3 August 1959, 31 October 1961

The plaintiff’s Certificate of Service also included assessments of his character and efficiency from time to time; and whether he was recommended for advancement. Assessments made between 1953 and 1970 rated Mr Stafford’s character as very good and his efficiency as superior. When qualified for advancement, in each instance he was recommended for the same. I add that when the plaintiff left the Service, his Certificate of Discharge described his conduct as “very good”.

I should next mention the plaintiff’s medical record whilst in service with the Navy. He was assessed at time of entry[7]. His answers to a questionnaire show that he denied having ever suffered from “Nervous Trouble, Nervous Breakdown, Fits, Sleepwalking or Nightmare”. He was certified fit for entry.
[7]Exhibit DB2

Next, on re-engagement in 1957 the plaintiff was medically assessed.[8] “Mental capacity” and “emotional stability” were marked on a pro-forma report as normal.
[8]Part Exhibit DB11

The record shows that the plaintiff suffered traumatic injury to his left eye in May 1960; and that, with treatment, the injury resolved.

A medical examination was conducted in late 1960, in connection with the plaintiff’s further re-enlistment.

Another medical examination was conducted on 5 April 1965 as a precursor to the plaintiff’s 1966 re-enlistment. At the time of this examination the plaintiff was stationed at Leeuwin. Again, “emotional stability” and “mental capacity” were marked as normal.

On 17 November 1970 the plaintiff underwent medical assessment prior to discharge. As part of his self-assessment[9] he stated that he did not suffer from disabilities at present; and that he did not claim to be suffering from any disabilities which he considered to be due to or aggravated by service. He provided a note of disabilities suffered during service. That note was evidently incomplete. The medical examination record completed on 17 November 1970 again marked “emotional stability” and “mental capacity” as normal.
[9]Dated 12 November 1970

Very little evidence was led as the means whereby either “emotional stability” or “mental capacity” was assessed on any of the occasions to which I have referred; or indeed, exactly what those terms described or encompassed.

The plaintiff was cross-examined about the various entries. I will refer to the detail of the cross-examination later. It is enough to note presently that the import of the entries and the effect of the plaintiff’s viva voce evidence relating thereto were live issues at trial.

During 1964, the plaintiff attended naval medical officers on three occasions:

·On 18 July 1964, when he was diagnosed as suffering from bursitis of the right elbow.
·On 18 September 1964, after he was hit on the head by a hammer which fell some feet, this causing a laceration of his right occipital region which required sutures.
·On 20 November 1964, when he complained of bad breath over a period of a week. Examination showed a clean mouth, and no dental cause for such complaint.

The plaintiff attended naval medical officers on a number of occasions between 1965 and 1970. Presenting complaints were of problems with vision, the upper respiratory tract, the pharynx, the left shoulder, the right ankle and the low back. Attendances, overall, were infrequent.

There is nothing to suggest that the plaintiff made any complaint of symptoms which would have been immediately identifiable by the doctor as symptoms of psychiatric injury at the time of his attendances on naval doctors in 1964 and thereafter. Neither, by the same token, do the records suggest that on any such occasion he was asked any question as might have disclosed the presence of such symptoms.

I have said that the plaintiff was discharged from service on 12 February 1971. The reason why he sought to be discharged was an issue at trial. What is not in issue is that:

·On about 20 July 1970 the plaintiff wrote to the Defence Forces Retirement Benefits Board (“the Board”) indicating an intention of retiring after 20 years’ service in February 1971, and enquiring about his pension entitlement with and without commutation of part thereof.[10]
·On about 9 November 1970, the plaintiff wrote to the Board stating he wished to commute part of his pension so as to buy a house.[11]
·On about 14 December 1970, the plaintiff made application for commutation of the maximum permissible one-third of his anticipated pension (the full amount of which was $1,557 per year) in order to buy a house for about $20,000.[12]
·On 27 January 1971 the plaintiff made a statement concerning his health, and on 11 February 1971 the plaintiff was examined in connection with his commutation application.[13] In the former, he stated that he slept well, and was then in good health. In the latter, the medical officer recorded that the plaintiff was “robust – active”, that there were “no other physical or mental conditions” which he considered it advisable to mention, that the plaintiff did not have “any physical or mental defects” which were likely to affect his life expectancy, and that the plaintiff was “fit”.

[10]Exhibit DBA2

[11]Exhibit DBA3

[12]Exhibit DBA1

[13]Exhibit DBA7

As post scripts, the plaintiff and his wife had not in fact owned a home before 1971, they did purchase a home thereafter making use in part of the commuted portion of the plaintiff’s pension entitlement, and there was no evidence what questions or examination led to the doctor’s pertinent observations.

After his discharge in 2 February 1971, the plaintiff had a few relatively short-lived jobs in the period up to March 1973. Then he commenced work as a maintenance officer with MacRobertson Miller Airlines (“MMA”)[14] which then operated an extensive regional service throughout West Australia. He remained in that employment until he was terminated on 8 July 1990. Over the years, he worked in very large part in Perth. He made a very few trips to the North-West. Essentially, he worked alone.
[14]It eventually became part of Ansett Transport Industries Ltd

On 27 July 1989, the plaintiff suffered a fractured left ankle in compensable circumstances. He went on to workers’ compensation. He made unsuccessful attempts to resume work in the period leading up to his termination in July 1990. Weekly compensation, it was common ground, was paid until about April 1991, in a total amount of $30,957. Thereafter the plaintiff was paid a lump sum of $15,000 plus agreed costs (together with a right to retain workers’ compensation that had been paid) in settlement of a common law claim which he had instituted.[15] It was not in debate at trial, I add, that the 1989 accident left the plaintiff with a permanent disability of his left leg.
[15]Exhibit DB9

The plaintiff was a member of a Superannuation Plan when employed by MMA. The evidence did not show the total amount of the plaintiff’s contributions over the 15-odd years that he was a member of the plan. It appears, though his counsel ultimately argued to the contrary, that when the plaintiff’s employment was terminated he received both a so-called Resignation Benefit of about $53,000 and a Total and Permanent Disablement Benefit of about $81,000.

I turn from the plaintiff’s ankle injury to other medical conditions which emerged over the last 15 years of his life. First, in 1990 he underwent surgery to his nose in connection with sleep apnoea. Second, at a time which the evidence left uncertain, he suffered a detached retina. Investigations in that connection revealed that he was also suffering from chronic lymphocyte leukaemia. There was no evidence, I think, that the latter had any incapacitating effect upon him at that time or in the period up to 1995. Third, it was in 1995 that he was diagnosed as suffering from carcinoma of the colon; and was found to be suffering from tumours of the bladder.

The plaintiff underwent bowel surgery on two occasions in 1995; and radiotherapy for the bladder tumours. For one reason or another he was left with chronic diarrhoea which inhibited his day to day life. He also became impotent.

In the years thereafter, the plaintiff suffered many partial bowel obstructions which required hospitalisation. Those incidents were not his only medical problems. In September 2000 he underwent aortic valve replacement; and at some later time he had a pacemaker fitted because of cardiac arrhythmia. Further, in February 2001 an MRI showed possible meningeal consequences of the plaintiff’s leukaemia – though this diagnosis was later revised. Again, in late 2002 he underwent surgery for a recurrence of his bladder cancer. Finally, in August 2004 the plaintiff underwent laparotomy. The plan was to remove cancerous areas of the bladder, and possibly the bowel. But surgery was abandoned, and the plaintiff, at the time when examined de bene esse on parts of four days in September 2004,[16] was on a regime of extensive medication, including slow release painkillers. It seems also to have been the case that at that time his urine was being drained by catheter.[17]
[16]13, 14, 15 and 16 September 2004
[17]See the evidence of Mrs Stafford at T 112

The video tapes of the plaintiff’s de bene esse examination went into evidence. They provide some direct evidence of Mr Stafford’s physical state at the time. Considered in the context of his disclosed medical history, evidence given by his wife and daughter, and the fact that he died within three weeks of the last day of his examination, the video tapes strongly suggest that when giving evidence the plaintiff was an extremely unwell man.

The plaintiff began to receive a Veterans’ Affairs Pension on or about 5 April 1991. He continued to receive such a pension up until 1995. Then he began to receive a Disability Pension. It continued until his death.

In 1998 the plaintiff sought an increase in his Disability Pension in respect of previously accepted disabilities; and he claimed a disability pension in connection with a disability which had not then been accepted as service-related[18]. His claim for a pension increase was in respect of malignant neoplasm of the colon. His claim in respect of a new condition was for “impotency”. He made no claim for any psychological condition.
[18]Exhibit DBA11

The plaintiff made assertions by statutory declaration dated 28 January 1998 in support of those claims. So, he said that he was tense and anxious most of the time because of concern for his future. He worried for himself and his wife. He therefore found that he slept very poorly, and was thus very irritable during the day. His inability to relax caused much conflict and tension in his marriage; as did his impotence. He had withdrawn from his wife and family and they from him. He had withdrawn from social activities outside his family. His social life was becoming more limited. He had lost contact with many of his friends. He could no longer enjoy golf because of anxiety about getting to a toilet in time. He had been forced to retire from the workforce due to [his] ill-health.

I have described what the plaintiff in fact asserted in 1998. There was no controversy here, in that the plaintiff did make those assertions. There was, however, substantial debate at trial as to what, if anything, was to be drawn from what the plaintiff had said. According to the defendant, the plaintiff made reliable admissions against interest. According to the plaintiff’s case, what the plaintiff had asserted was at odds with the true situation. His psychological problems had long predated his 1989 injury and his subsequent ill-health. Attributing all those problems to aspects of that ill-health had been an innocently erroneous attribution.

Was the Collision a Cause of the Plaintiff Suffering PTSD?

The material which enables determination of the question whether the plaintiff established that the collision was a cause of him suffering PTSD consists in part of the non-contentious material already outlined, and in part the following:

·Other viva voce evidence of the plaintiff
·Lay evidence adduced for the plaintiff from –
-     Elizabeth Stafford (the plaintiff’s wife);
-     Annette Wright (the plaintiff’s daughter)
-     Trevor Robbins
-     Thomas Lincoln
·Medical and related evidence adduced for the plaintiff from –
-     Dr Fellows-Smith
-     Dr Stain (psychologist)
·Lay evidence adduced for the defendant from –
-     Laurie McCracken
-     Brian Swan
-     Leslie Passmore
-     Barry Solomon
·Medical and related evidence adduced for the defendant from –
-     Dr Milton
-     Professor Bryant (psychologist)

In addition, the defendant relied upon statements said to have been made by the plaintiff in his consultations with Dr Milton and Professor Bryant as admissions against interest; and each party relied, in connection with the present question, upon some of the evidence given by medical experts who had not examined the plaintiff:

For the plaintiff –
-Professor McFarlane
-Professor Hopwood

For the defendant -
-Professor Shalev
-Professor Burrows.

I should mention that the defendant also called a third psychiatrist who had not examined the plaintiff – Dr David Bell. That doctor gave some evidence bearing upon the present issue. Counsel for the defendant, however, did not refer to Dr Bell’s evidence at all in his final submissions.

Some matters of common ground, and a few conclusions may be quickly stated.

First, PTSD is a diagnosis made by reference most often to criteria set out in the Diagnostic and Statistical Manual of Mental Disorders which is published by the American Psychiatric Association. It is now in its fourth edition, its title being shortened to “DSM-IV”.[19]
[19]In fact, though it is not presently important, DSM-IV has already gone through revised and transitional versions. Thus: “DSM-IVR” and “DSM-IVTR”

Second, in 1964 the operative edition of the manual was DSM-I, which had been published in 1952. It was followed by the publication of DSM-II in about 1966, DSM‑III in 1980, DSM-IIIR in 1987 and DSM-IV in 1994. DSM-III was the first edition to identify PTSD by reference to criteria generally akin to those now in use. By contrast, DSM-I identified what is now called PTSD as a “gross stress reaction”, as one of the neuroses. As at 1964, I add, the term “traumatic neurosis” [20] was known.
[20]Professor Burrows, T 732

Third, the diagnosis depends upon the presence of circumstances which satisfy six criteria lettered A-F. Criterion B is satisfied if only one of five circumstances is present, and was described in evidence as being permissive. So, Professor Shalev gave evidence that satisfaction of criterion B does not enable differentiation between patients who do and do not suffer from PTSD. That is to be contrasted, he said, with criterion C, which is the hardest to satisfy. If criterion C is satisfied, the Professor was saying, it strongly points to a diagnosis of PTSD.[21]
[21]See T 790

Fourth, the criteria are respectively to the following effect (I do not reproduce them word for word as in the Manual).

-Criterion A: the person has been exposed to a traumatic event in which both of the following were present:
(1)The person experienced, witnessed or was confronted with an event or events which involve actual or threatened death or serious injury; or a threat to the physical integrity of himself or herself or others.
(2)The person’s response involved intense fear, helplessness or horror.

-Criterion B: the traumatic event is persistently re-experienced in one (or more) of the following ways:
(1)Recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions.

(2) Recurrent distressing dreams of the event.
(3)Acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations and dissociative flashback episodes, including those that occur on awakening or when intoxicated).
(4)Intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event.
(5)physiological re-activity on exposure to internal or external cues which symbolise or resemble an aspect of the traumatic experience.

-Criterion C: persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness as indicated by three (or more) of the following:
(1)Efforts to avoid thoughts, feelings or conversations associated with the trauma.
(2)Efforts to avoid activities, places or people that arouse recollections of the trauma.
(3)Inability to recall an important aspect of the trauma.
(4)Markedly diminished interest or participation in significant activities.
(5)Feeling of detachment or estrangement from others.
(6)Restricted range of affect.
(7)Sense of foreshortened future.

-Criterion D: persistent symptoms of arousal, as indicated by two (or more) of the following:
(1)Difficulty falling or staying asleep.
(2)Irritability or outbursts of anger.
(3)Difficulty concentrating.
(4)Hyper vigilance.
(5)Exaggerated startle response.

-Criterion E: duration of the disturbance more than one month.
-Criterion F: the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.[22]

[22]The detail of criteria A-F is set out in Professor Bryant’s Report, Exhibit 3

Fifth, psychological tests may be performed which are designed specifically to assist a conclusion whether circumstances recounted by a patient satisfy the pertinent criteria. Nonetheless, diagnosis depends at least very considerably upon the reliability of symptoms recounted by a patient, although the skilled medical professional will be alert to consider whether the patient’s history fits together.

Sixth, there is a particular problem when a patient presents long after an event which would prima facie satisfy the requirements of criterion A of DSM-IV, that patient providing a history of symptoms compatible with the presence of PTSD in the intervening period. Memory is fallible. There is a risk of innocent but false attribution of symptoms to that criterion A event. On the other hand, in some cases – there was argument how many – persons who suffer from PTSD do not discern that their symptoms represent illness, or reject the idea that they are psychologically unwell. So it is that a prolonged period may pass whilst symptoms of PTSD remain present but medically unexplored. So also, the evidence suggested, in some cases the presence of symptoms may be recognised, but attributed to a cause other than the critical traumatic event.

Seventh, the problems to which I have just referred do not lead to a conclusion, contrary to absolutist arguments particularly advanced by Drs Milton and Bell – arguments which I reject – that the history provided by a patient or by his or her family should be put aside, for diagnostic purposes, if it is not supported by “objective” facts. That is not to say, of course, that such facts should not be carefully considered when evaluating what is to be made of the history provided by a patient and his or her family; though again, whether a particular circumstance should or should not be considered an objective fact will not always be a matter which is free of argument.

I go to the body of evidence which is yet to be considered.

The Plaintiff

The plaintiff gave evidence which embraced a considerable number of issues that were alive at trial, and as well issues about which there was no controversy. The former class included evidence about –

· His family and social relationships before and after the collision.

· The circumstances of the collision from his perspective.

· A direction or instruction of which he became aware before disembarking in Sydney.

· Symptoms experienced subsequent to the collision.

· The circumstances of his discharge.

· The impact upon him of the ankle injury which he suffered in 1989, and of subsequent serious illnesses.

· When he first knew that he was suffering from PTSD.

His evidence was given, as I have earlier said, over parts of 4 days in September 2004; and it is evident from studying the videotapes of his examination, taken in conjunction with his death soon thereafter and with evidence given by his wife and daughter, that he was a very ill man at the time. That complicates consideration of the reliability of his evidence, a consideration already made difficult by the span of years addressed by such evidence.

Given those matters, this may be said: whilst it is always possible to accept some part and reject another part of a witness’s evidence – and, indeed, as these reasons will show, that is what I do in respect of the plaintiff’s evidence - consideration of a witness’s evidence overall is likely to yield an impression whether the witness is overstating or understating his or her position, whether he or she readily assimilates questions asked, and whether he or she readily verbalizes emotions. In the present case, I gained the clear impression that the plaintiff did not overstate his evidence. Indeed, he made many concessions, some of which were not required. I also gained the clear impression that he was not a man who easily articulated his emotions. He gave the impression, to the contrary, that it was difficult for him to explain the impact of the collision upon him, both in the hours that followed its occurrence and in the long term. It is unnecessary, presently, to consider whether such difficulty represented an avoidance mechanism at work.

Although complete separation of issues is unachievable, and despite what I have said about evaluating a witness’s evidence in the broad, it is convenient to break up aspects of the plaintiff’s evidence pertinent to the question whether the collision was a cause of him suffering PTSD.

Service and sport before the collision

Mr Stafford gave evidence about his training and his experience as a shipwright in the period up to the time of the collision. It is not in debate that he was an enthusiastic and proficient seaman, and that he advanced in the minimum time to the rank of Chief Naval Shipwright, which was equivalent to Chief Petty Officer. Neither is it in debate that before the collision he was a keen and competent sportsman.

Family and social relationships before the collision

Apart from the evidence in this connection which I have set out in the section of these Reasons headed “Non-Contentious Material”, the plaintiff gave this evidence:

He played and enjoyed sport throughout his younger life. This continued when he joined the Navy. At the time of enlistment he was, he believed, in very good health; and so he remained until the collision.

During service, and before the collision he socialised with friends and neighbours. There were picnics and parties. Basically his social life was within the naval community.

His marriage, before the collision, was quite good. He got on “very good” with his children. He did things with them such as swimming, picnics, going to parks, cycling.

Before the collision he took a moderate amount of alcohol – maybe three to four glasses of full strength beer each night.

Before the collision he had no sleep problems. He did not suffer from hot and cold sweats in association with sleeping.

Cross examined, the plaintiff agreed that discipline had been bred into him from an early age; and that he was (and by inference always had been) intolerant of undisciplined people.

In all, the plaintiff’s evidence about his pre-collision behaviour, interests, family and social life was essentially unchallenged. It was corroborated in certain respects by the evidence of his wife, daughter, Robbins and Lincoln. Nothing in McCracken’s evidence spoke to the contrary. I see no reason why it should not be accepted.

The collision and its aftermath

The gist of the plaintiff’s evidence in chief concerning the collision and its immediate aftermath was as follows: He was in a mess room when “(a)ll of a sudden there was this big shudder, like a roll.”[23] Then there was an announcement: “Collision, Collision” and he knew what had happened.
[23]T 15, De Bene Esse Examination (“DBE”)

His job was damage control. He headed forward and saw damage in the 3 Alpha area. The main toilet block for the ship’s company was in that area. He observed the broken remains of the toilets “and looked straight through into the ocean.”[24]
[24]T 16, DBE

When he observed the scene his reaction was “horror, shock, the damage was done and possible repercussions of that.”[25] At that stage he had no idea whether there had been loss of the life on Melbourne. He was horrified about the possibility of what could have happened to any men on the toilets. He was terrified, shocked about what it could have been like for anyone caught in that position – whether members of the crew of Voyager or Melbourne (he made reference to members of either crew who were unaccounted for).[26]
[25]T 17, DBE
[26]T 33, DBE

Next, he sent shipwrights to various parts of the ship to check for damage and any leaks. Shipwrights were sent as far below as the double keel of the vessel. They worked back from the so-called collision bulkhead. Eventually reports came back that were for the most part favourable.

In the course of the evening he learned that Voyager had come across Melbourne’s bow and had been cut in half. That affected his level of apprehension or concern because he believed his younger brother could have been a crewman on the Voyager, and he knew other Voyager crewmen. Only later that night did he learn from a Voyager survivor that his brother had not been on board at the time. That gave him profound relief.

From the outset there was a source of worry: “How could this possibly happen in this modern day and age.”[27] He turned his mind to what would have happened had the circumstances of the collision been different, Voyager striking Melbourne amidships. The consequences of such a collision went through his mind.
[27]T 19, DBE

That night the plaintiff was in charge of about 6 shipwrights and 14 or 15 apprentices. He was worried for the apprentices – that they might do something irresponsible and be drowned or get hurt.

At one stage “they” were contemplating sending a boat across to the stern section of Voyager. “They” required two shipwrights to go. He allocated two men. But they never went, because for some reason the order was cancelled.

Asked whether he had any “images” “about those men”, he replied “Yes, I could say it did, yes.” He referred to “the injuries and damage they could have suffered.”[28] He tried to push the images out of his mind.
[28]T 34, DBE

He did see the stern section of Voyager. He thought that it was before he was told, in effect, that his brother was safe. He had some thoughts concerning his brother and others.

Returning to the narrative in sequence, after reports had come in preparations were made for shoring the bulkheads, and then for putting the shoring in place. When the job was finished he was confident that it would do the job. But he remained concerned during the return journey to port, and a watch was set up to make continuous observations.

He thought he had seen the after section of Voyager sink; but since he had been told that he had not seen it. He did not know “if that was just hearsay.”[29] The fact that it had gone down caused him to feel horrified, apparently about the prospect that more lives had been lost. At that time he did not know where his brother was.
[29]T 24, DBE

One of Voyager’s survivors was a shipwright named Webb. Whilst on Melbourne he continued to wear his life jacket and would not go below decks.

Cross-examined about the collision and the hours that followed, the plaintiff agreed that as a trained man he knew what he was doing. He agreed also that inspections did not suggest that Melbourne was in imminent danger of sinking, that the shoring was done to his satisfaction, that he had confidence the ship would return to port safely, and that he had, he thought, a small amount of sleep on the return journey.

Further cross-examined, the plaintiff agreed – he had never suggested the contrary in his evidence in chief – that he had not taken part in, or seen anything of the rescue operation, nor rendered treatment to Voyager survivors.

He agreed that he had not been immediately exposed to crewmen on Voyager being killed or injured, and that he had not seen men in the water, or dead or injured persons on board Melbourne.

The plaintiff also agreed that he knew no one had been in the 3 Alpha area when the collision occurred, and that his sense of horror and terror had been as to what might have happened.[30] The question when he acquired that knowledge was not explored. Robbins gave evidence which suggested strongly that the plaintiff did not have such knowledge in the hours which followed the collision.
[30]T 90, DBE

The plaintiff agreed, again, that his terror about what might have happened had Voyager struck Melbourne amidships addressed a situation which had not occurred.

Put to him that at no time did he personally feel that his own life was threatened, he replied: “I was too worried about other people’s lives.”[31]
[31]T 91, DBE

Pausing for a moment, I see no reason to reject the plaintiff’s account of his involvement in the aftermath of the collision. In some respects his evidence minimised his role. Compare Robbins’ evidence. McCracken’s evidence tended to downplay the nuts and bolts work that the plaintiff did. Such evidence conflicted to an extent with the evidence of the plaintiff and Robbins; but I do not consider that anything turns on it.

Further, I see no reason not to accept the plaintiff’s evidence about the matters which he said concerned him. Robbins’ evidence was persuasive that the plaintiff was worried about tasks which he assigned to his shipwrights. Robbins’ evidence underlined there being some reason for apprehension about the soundness of the collision bulkhead despite the efficiency of the shoring. True it is that the plaintiff did not take part in the rescue operations, but he ascertained what had happened, saw the stern section only of Voyager afloat, believed for some hours that his brother had been aboard Voyager, and must certainly have understood the probability of casualties – possibly including his brother – in the circumstances which had occurred. His observations of the way in which the survivor Webb behaved were apt to emphasise the horror of the incident, and his own helplessness. I do not consider that the effect of the evidence is that the plaintiff knew at the outset that no crewman had been in the 3 Alpha area at the time of the collision – that is, that any concerns he had about that matter were founded on a situation which he always knew had not been in fact the case. Again, whilst his evidence and that given by Robbins did not relevantly coincide, I do not reject the plaintiff’s evidence that – in the unprecedented situation which obtained – someone directed or proposed that a boat partly manned by shipwrights be sent over to the stern section of Voyager. There is no reason to doubt that the plaintiff, as a well-trained and efficient man, did his job well. But that does not gainsay the plaintiff’s account of what he saw and did, or his evidence of his reaction to the circumstances of which he became aware. Nor does the fact that, as I accept, the plaintiff pondered about the risks of some situations which had not occurred mean that he was not troubled by events which had occurred and did occur and of which he knew.

Work, family and social relationships after the collision. Symptoms allegedly experienced

The gist of the plaintiff’s evidence in chief was as follows:

·He understood the terms “flashbacks”. He had occasionally experienced them, first at a time very shortly after the collision. He still suffered from “minor ones” of shorter duration. They prevented him going back to sleep. They also induced bowel motions. The experience was “a re-occurrence of what happened”.[32]
[32]T 57, DBE
·He had experienced a recurring memory about Jimmy Webb, the Voyager survivor who would not go below decks whilst on Melbourne. “Every time you saw him you thought about those things.” But he had seldom seen Webb after the Melbourne docked, and he could not say he’d had “any of these memories at all since then”.[33]
[33]T 58, DBE
·Seeing a photograph of a ship in the paper, or a carrier in the paper “you get a flashback then... a recollection of what had happened.”[34]
[34]T 58, DBE
·Since the collision he had made a practice of avoiding naval ships and establishments.
·Virtually straight after the collision he first felt depressed. It had eased off in the interim between the collision and the present time.
·He probably suffered from “a little anxiety”. There was no set pattern to it. He could not really think what made him nervous.[35]
[35]T 62, DBE
·He had begun to feel stressed almost straight after the collision. He thought it had eased. He put no timeframe to such improvement.
·Whenever he saw anything that “reminds [him] of it... it brings it back”.[36]
[36]T 59, DBE
·When he served on Sydney in 1968 and 1969 “it brought back recollections of what did happen”.[37] (The plaintiff then gave evidence which I find difficult to fully comprehend. He mentioned “what possibly could happen, under a different set of circumstances where it was very unlikely it probably would happen.” The water in Vung Tau harbour, he said, was like mud. There was a possibility of underwater enemy action that would not be seen. Divers were put over the side. They were all worried, “what could happen once could happen twice I suppose.”[38])
[37]T 55, DBE
[38]T 56, DBE
·His concentration had been affected from shortly after the collision up to the present time. His reading fell off after the collision. He would say it was lack of interest. Thereafter he had made attempts to read, but it was difficult applying his mind to the task.
·From shortly after the collision he had suffered from irritability, and had become argumentative and intolerant in his relationships with family members, friends and his staff. He would not accept what he considered to be “misbehaving” by others. He had arguments with his wife, she saying that he was being too hard on the children, and that he had no reason to be hard. He thought he agreed with her, he did not want not to change his attitude, but he did not do so. Except for a few close friends much of his social life disappeared, although after he was posted to Leeuwin in 1965 he took to playing golf on Wednesdays and Saturday mornings, and later played on Saturday mornings only until about 18 months before giving evidence. He became harder with his Navy staff. He had disagreements with his superior officer about the content of reports in which he sought to assign blame to others – in particular a report concerning what he considered was defective workmanship by Garden Island personnel.
·From when he first went home after the collision his sleep pattern had been poor. Problems with sleep had been associated with hot and cold sweats. He did not think he could point to anything that triggered the sweats. His sleep had remained poor. He had tried to help his sleep problem by taking alcohol.
·He had consumed more alcohol than previously from the time that he first went ashore after the collision. He stayed later at hotels, and he drank at home. He drank by himself at a Leagues Club until moving to Leeuwin in 1965. He took beer, spirits, wine and fortified wine. When he played golf, he drank a fair bit after the game.
·When he returned home after the collision, he did not talk about the matter with his wife. In the days after he got home, he went to an hotel and met other sailors. There was talk about whose fault the collision had been, but he and most of the others refused to discuss it.
·After the collision he did not go to films for years. He had been “maybe on one or two occasions, not very often”,[39] since the collision.
·At the outset, his attitude to the Navy had been that he was disappointed that such a thing could have happened. He had thought a lot about his future in the Navy. He had eventually accepted that it “was a case of an accident, and therefore [he] would accept that it wouldn’t affect [his] perspective of the Navy.”[40] He thought that he settled down to the fact that he would remain in the Navy “for life” – by which he meant to age 55. His lack of faith in the Navy had been temporary.[41]
·He decided to leave the Navy “after careful consideration about [his] son and the trouble [his] wife was having, [he] thought maybe it’s time [he] did something about it, to relieve her of the pressure she was under.”[42] He attributed the fact that his son was causing difficulty to lack of supervision by him, attributable in turn to the fact that the navy was his life.[43]
·After leaving the Navy he took casual work as a cabinetmaker, then worked as a fibre hull builder and later worked as a furniture assembler before joining MMA. It is, I think, notable that he left the second and third of those jobs after disagreements with the proprietors over wages and employment. This might be said to continue a trend discernible in his disputes with McCracken and Swan. It is, I think, also notable that, on his account, not inconsistent with the evidence of Passmore, he had “a few fallouts with [his] immediate supervisor, in different aspects of the job.”[44]

[39]T 47, DBE

[40]T 38-39, DBE

[41]T 45, DBE

[42]T 45, DBE

[43]T 45, DBE

[44]T 50, DBE

Cross-examined, the plaintiff –

· Agreed that his personality was such that he would always follow through on what he thought was right – an instance being the circumstances in which he ended his schooling.

· Agreed that his periods of enlistment were such as would have enabled him to leave the Navy after 20 years’ service, having then earned a pension entitlement. But did not agree that he necessarily had intended to seek a discharge after 20 years; and asserted that his discharge was related to the collision.

· Wrongly, I consider, gave evidence that an incident in which his son broke into a school, he thereafter taking his son to the police, occurred about 18 months before his discharge. There was such an incident, and the plaintiff did arrange for the police to caution his son. But the incident occurred many years before the plaintiff’s discharge, according to evidence given by Mrs Stafford which I accept.

· Wrongly, as I conclude, gave evidence that his wife complained about him being away so much and that she could not control their son, in which circumstances he put the family first and sought a discharge. According to the evidence of Mrs Stafford, problems with their son largely post-dated her husband’s discharge; and she did not urge him to leave the Navy – rather the converse. Broadly similar evidence was given by Mrs Wright. The evidence of Mrs Stafford and her daughter seems more likely correct, bearing in mind also that the plaintiff had been shore-based in Perth, living with his family, for the 12 months preceding his discharge. Indeed, in the seven years between the collision and his discharge he was ship-based for less than 3 years, 10 months of which was in 1964 (for part of which time the Melbourne was in dock, undergoing repairs).

· Gave an explanation for McCracken’s entry of 23 December 1964 which varied from that given by the latter. McCracken’s version fits what he wrote better than does the plaintiff’s account, and to that extent I accept McCracken’s evidence. But the plaintiff gave a credible account of what must have been – accepting McCracken’s evidence thus far – a second dispute between the two men. In the interests of fairness I put the plaintiff’s version to McCracken. In substance, he denied that an incident such as the plaintiff recounted had occurred. The probabilities, given the detail of the plaintiff’s evidence, favour a contrary conclusion. I note, in passing, that defendant’s counsel did not cross examine the plaintiff either to suggest that his version was not the explanation for McCracken’s entry, or that the incident described had not taken place.

· Agreed that in normal circumstances a (naval) doctor was readily available. In that context, having agreed that he consulted a doctor three times in 1974, said that he could not really explain why he had not consulted a doctor about depression or anxiety that year.

· “Assumed” that he would have been asked questions about his emotional stability and mental capacity at re-enlistment examination in April 1965;[45] and agreed that he “would have told” the examining doctor at his discharge examination in November 1970 if he was “feeling emotionally unstable or... had a problem with mental capacity”.[46] Further, taken to his personal statement dated 27 January 1971[47], agreed that he had said he slept well, and that he assumed it was true.[48]

[45]T 79, 80, DBE
[46]T 80 DBE
[47]Exhibit DBA7
[48]T 82, DBE

· Agreed that “it could possibly be correct” that he could not really describe the images in his mind “because, really [he was not] a witness to anything horrible or terrifying that actually happened”.[49]
[49]T 91, DBE

· Agreed that on the wall of his home there was a photo of Melbourne and his navy medal, to remind him of the ships he had been on.

· Agreed that he had been boating with a neighbour and son-in-law – that is, since leaving the Navy – and had enjoyed it.

· Agreed that he had attended a particular general practitioner periodically from about 1988, and other doctors before that; and that discussion with his general practitioner about his alcohol consumption had apparently been stimulated by the diagnosis of leukaemia in the early 1990s. He had been advised, he said, to cut down consumption, but he did not completely follow that direction.

· As to his level of alcohol consumption, said that “possibly” he was drinking two bottles of beer a day in 1990.

· Said that he could not recall whether, in 2001, he was not having flashbacks, not having nightmares, and was not preoccupied with the collision.

· Denied that the multiple health problems he had experienced since 1989 were the reason “why [his] life [had] become dislocated and [he suffered] anxiety and depression”.[50]

· Agreed that he had never made a Disability Pension claim for psychiatric or psychological problems; but agreed also that in his 1998 claim for a pension increase he had attributed a considerable number of the symptoms pertinent to his present claim to his worrying about his colon cancer and impotence, and further agreed that his attributions were “true”.[51]

[50]T 111, DBE

[51]T 115-123, DBE

I have commented about the unreliability of certain concessions made by the plaintiff in cross-examination. Other concessions – for example, what he “assumed” he had said to the examining medical officer in 1965, and what he “would have told” the examining officer in 1970 – were no more than conjecture. Again, having regard to the type of man I judge the plaintiff to have been, and in light of the type of symptoms which he allegedly experienced in 1964, I attach no significance to his concession that he “couldn’t really explain” why he did not consult a doctor about depression or anxiety that year. So also, although it was a matter which Professor Bryant considered significant, in light of evidence which I later accept as to the nature of “cues”, I do not conclude that the plaintiff’s enjoyment of taking to sea in a fishing boat was inconsistent with him suffering PTSD in consequence of the collision between an aircraft carrier and a destroyer.

On the other hand –

·The plaintiff was not investigated for PTSD until 2000.
·In the preceding decade he had experienced a series of grave illnesses. They followed a serious and incapacitating ankle injury which he suffered in 1989.
·In 1998 the plaintiff attributed many of the symptoms the subject of this claim to the impact upon him of his colon cancer and impotence. In evidence he accepted the truth of those attributions.
·If the diagnosis of PTSD was correct, there were possible stressors in early times other than the collision: problems with his son and (on one view of the evidence) the circumstances in which he left the Navy.
·The examining naval doctors in 1965 and 1970 – albeit that what was said and done was not explained in evidence - noted no problem with the plaintiff’s mental capacity or emotional stability.
·The plaintiff’s concessions as to lifelong personality traits, if correct, could provide an explanation for certain of his conduct after the collision.
·The plaintiff had apparent difficulty in describing the contents of “images” and “flashbacks” – a matter considerably relied upon by some of the defendant’s witnesses.
·The plaintiff continued in service for seven years after the collision.
·There were other apparent contradictions or anomalies in the plaintiff’s evidence.

Having regard to the matters just raised, as well as to the plaintiff’s evidence in chief and my earlier observations about his apparent state of health when giving evidence, I consider that in this case it is particularly necessary to closely study the whole body of pertinent evidence in order to reach conclusions whether the plaintiff did experience some and what symptoms from the time of or from soon after the collision, and whether his work, family and social relationships thereafter altered. I go to other pertinent lay evidence.

Mrs Stafford

The plaintiff’s wife gave evidence that she knew her husband for four years before their marriage in 1955. In that period, and until the collision, he was outgoing and full of fun. He did not seem to drink much, though on occasion she had seen him merry. They had an active social life. The plaintiff would play with the children, they took the children on picnics and so on. Their method of dealing with the children, if something went wrong, was to talk about it – not resort to corporal punishment.

According to the witness, at first when her husband returned home after the collision she thought he was all right. But he was quiet, would not talk about the collision when she asked him, would not have anything to do with the children, and would tell them to go away. His refusal to talk about the collision persisted in the years that followed.

Mrs Stafford gave much other evidence of changes which she noticed in her husband’s behaviour and manner from a time soon after the collision – changes which persisted; and of her reaction, in some instances, to those changes. So, she gave evidence that:

· Her husband’s attitude to their children changed. He became harsh with them, and resorted to corporal punishment using a leather strap. Use of corporal punishment went on for years, and was a source of argument between she and her husband. Because of her husband’s intolerance of the children, she tried to get them to bed before her husband arrived home.[52]
[52]T 65

· Her husband began to drink a lot more from soon after the collision. This pattern of considerable use of alcohol persisted throughout his life. It was a source of arguments between them.

· Her husband’s sleep pattern became disrupted, when previously he had gone straight to sleep. He was alright for the first few nights after he came home following the collision. But then he started having nightmares. He would wake up at night. He would get up and wander the house. He sleep-walked a few times.[53] Quite often he would moan and groan and say “Watch out. Mind the water”[54]. This went on and on. In the first four to five years after the collision the plaintiff had nightmares - sometimes twice a week, sometimes not, at other times it would be two to three times per week. After seven or eight years it slowed down. She would shake him and wake him and ask what was wrong. He would say that there was nothing wrong.[55]
[53]T 68
[54]T 67
[55]T 66, 68

· Her life, specifically whilst her husband remained in the naval service, was like being on egg shells. Nothing she said or did was right.[56] Her husband was irritable and bad tempered. That continued until his death. Within the first 10 years or so after the collision, she threatened to leave him once or twice. “But in those days you stayed.”[57]

· The plaintiff generally refused to mix with people, though occasionally they went out. There was some improvement after he returned to civilian life.[58]

· Quite often, before the collision, her husband would take the children down to see ships come in. One day they had gone to sea in a ship. But after the collision he would not go down to Fremantle to see the ships.[59]

[56]T 66

[57]T 68

[58]T 70

[59]T 70

Mrs Stafford was cross examined with a view, inter alia, of identifying alternative sources of stress in her husband’s life: problems with their son, the circumstances of her husband leaving the Navy, the onset of serious illnesses in the last decade of his life following on after the ankle injury in 1989.

It is apparent that there were problems with the son, occasionally before but more frequently after the plaintiff’s discharge in 1971. I am confident that the plaintiff was intolerant of his son’s antisocial behaviour; though whether or not the plaintiff’s behaviour towards his son was a cause of such behaviour is another matter.

Next, I accept Mrs Stafford’s evidence that her husband made his own decision to leave the Navy, and that it was not a decision which she sought. In consequence, I do not conclude that any resentment at being forced out of the Navy by his wife’s insistence provides an explanation for the plaintiff’s changed behaviour, if change there was.

Next, it is apparent that from 1989 onwards the plaintiff suffered first an injury and then a succession of illnesses, the latter of which particularly inhibited his activities and otherwise impacted upon the quality of his life. Mrs Stafford gave evidence that her husband was accepting of the injury and those illnesses.[60]
[60]T 103

Pressed with the suggestion that her husband had suffered significant emotional problems attributable to those conditions, Mrs Stafford responded by asserting, in effect, a belief that they could have been caused by the stress that he had been under, and so could be attributed to the collision.[61] Counsel for the defendant criticised Mrs Stafford’s objectivity in his final address. He submitted, in effect, that her mindset had been to lay everything at the foot of the collision. I do not accept that submission, which is not to say that Mrs Stafford’s avowed belief about the aetiology of the late-occurring illnesses represented the fact. To my mind her evidence was generally credible. Moreover, much of it was given support by the evidence of her daughter and of other witnesses including Robbins, Lincoln and Solomon.
[61]T 103

I accept the likelihood that the 1989 injury and particularly the later-occurring illnesses did subject the plaintiff to significant stress and were such as might induce or worsen certain psychiatric or psychological conditions. But I do not consider that Mrs Stafford’s evidence about observed changes in her husband’s behaviour following the collision should be readily rejected. That is so even giving due weight to the fallibility of memory after a long time elapse.

Mrs Wright

Annette Wright is the daughter of the plaintiff. Born in May 1956, she was aged not quite eight years at the time of the collision. She continued to live with her parents until she was aged 28. She became employed by MMA, like her father. She joined the company in September 1973, working in the finance section. Her father was then based close-by and they would often share transport.

In 1984 the plaintiff’s work-base moved out to Perth Airport. In the same year the witness obtained a new job as a flight attendant, also working from the airport. The witness continued in that job until 2001, when Ansett collapsed. From 1984, it appears, she saw less of her father travelling to and from work.

Mrs Wright was, I consider, a first-rate witness. She demonstrated an excellent memory. The more her memory was challenged, the better it was shown to be. In my opinion she was a thoroughly reliable witness albeit that she was still very young at the time of the collision.

Mrs Wright gave evidence that her first substantial memory of her father was in the period that he was stationed on Manus Island. It was a happy time. There always seemed to be family activities. Her father was happy and loving towards she and her brother.

Then, when her father was stationed at Albatross, the family lived not far from the gate of the base. She and her brother would wait at the gate for their father. When he came home they would play in the yard. There were picnics, car rallies and visiting. She could not remember ever being hit by one of her parents either at Manus Island or Jervis Bay.[62]
[62]T 128

She said that, in 1963, and up to the beginning of 1964,

“Our life with our parents was very good, really happy. It was always boisterous and fun.”[63]

[63]T 116

She and her brother, she said, were treated alike. They were quite respectful of their parents.

Before the collision, she said in cross examination, she knew on what ship her father was serving. “We always got to see the ships.”[64]
[64]T 128

Mrs Wright described her father’s behaviour and manner subsequent to the collision in this series of questions and answers:

“After the collision, immediately after the collision I remember we were – he wasn’t very talkative. He didn’t want to socialise with us. I remember Mum was always telling us to be quiet and, you know, to sort of not get in Dad’s way. He seemed to be very kind of moody and distant and we, as children, didn’t really understand the full impact of what had occurred. But it was just very, a totally different household, like not noisy, any fun, and not fun.
Did that change over the years? - I believe it probably got worse, if nothing else. He, my Dad became quite sort of grumpy. His moods would change at the drop of a hat, very moody. He no longer was affectionate to us. He was more standoffish, like, you never felt that you could get a cuddle or be close. He was sort of quite grumpy at us. He would get angry very quickly. He would sort of yell when we didn’t understand why he was yelling, we never really thought we did anything wrong; and I think it got worse over the years.
And did you notice anything in relation to the way Craig and your father were getting on? – The same as myself and my father. I suppose if we did naughty things, maybe Craig got a little bit more, more harsh – not harsher, but a little bit more told off than I did. But we both got told off and we both used to get belted.”[65]
[65]T 117

and:
“We used to get it across the bottom, and the back of the legs.
Yes. And how frequently would that happen? - Fairly frequently; not every day, or anything like that, but usually at least once a week or, you know, sort of a couple of times a week.
At the time, did you feel that it was fairly administered? - Not always, no. I don’t believe we did things that deserved it. I don’t believe that we were any different from any other children. We just seemed to get belted if we, if his mood changed, if he just went from being normal to angry. “[66]

and:
“As I grew up, when we moved back to Perth, yes, he used to drink. He used to sit and drink big brown bottles – you know the beer that used to come in the big brown bottles, he used to drink those. It seemed like he drank a lot of them on – he would sit and drink. We weren’t allowed to talk when it was news time, we weren’t allowed to talk at the table. He would sit and drink until the dinner was ready, or he would sometimes come home and we had already had dinner and been shoved out of the way.
You say you were ‘shoved out the way’; did that happen frequently? – Mum used to – yes, Mum used to try and get us bathed and ready for bed, if not in bed before Dad would come home, or at least in our rooms quietly reading.”[67]

[66]T 118

[67]T 118-119

Mrs Wright gave evidence that in the last few years before she left home at age 28 (that is, in about 1984) her father was still moody, still drinking. Her brother had moved out. Her father would pick on her mother. He would get quite angry.

“Usually, he would sort of be alright, and then all of a sudden he was angry. It was not really anything that manifested itself. He seemed to have this sort of line that all of a sudden he crossed over, and he was from one to the other.”[68]
[68]T 123

Robbins

Trevor Robbins is a retired man who served in the Navy between January 1960 and January 1980 in the shipwright field. He gave evidence, which I consider was generally credible, concerning the plaintiff. His evidence addressed the plaintiff’s personality and behaviour whilst in the Service and thereafter. I do not consider that the witness’ evidence was impeached because, as emerged in cross-examination , he had himself been a claimant[69] or because his brother in law is a current claimant.[70]
[69]He said that his case was settled in 2000 or 2001
[70]See T 428

The gist of the relevant part of the witness’s evidence was as follows:

· He first met the plaintiff in 1962. The latter was then instructing at Nirimba. It was his impression that the plaintiff was very knowledgeable, very easy to speak to, extremely confident, and fair and reasonable in his dealings with people.

· He joined Melbourne in January 1964 as a shipwright. The plaintiff was his superior, and in charge of about 20 men. It was a close-knit group. The plaintiff impressed as being knowledgeable and fair but firm. He was easy to deal with. He would share a joke, but made it clear that he would not tolerate too much mischief. He impressed as a leader. The witness would have followed him anywhere.

· On the night of the collision, three times the plaintiff expressed concern about having to put him (or in one case prospectively put him) into potentially hazardous situations.

· He remained posted to Melbourne during and after the period – that is, up until December 1964 – that the plaintiff remained so posted. He noticed “some considerable changes” in the plaintiff, who seemed “to develop a very short fuse”, would be very intolerant, less capable of discussing things.[71]
[71]T 423

· He came across the plaintiff quite a few times up to about 1967 or 1968. On each occasion the plaintiff did not seem very happy.

· In the mid-1980s, travelling on MMA aircraft, he met the plaintiff on a few occasions; and once he came across the plaintiff in a hotel at Derby. On this last occasion the plaintiff, when he first saw him, was affected by alcohol and drinking alone. The plaintiff continued to drink in company with him, and was still drinking when he went to bed.

· Cross examined, he said that before the collision he would describe the plaintiff as strict but fair. After the collision he would say that the plaintiff was unreasonable.

Lincoln

Thomas Lincoln is a retired Navy man. He commenced service in 1951 and, as I understand it, served for 30 years. After his later civilian career ended in 1999, he took up work, which he apparently continues, as a pensions officer with the Department of Veterans’ Affairs and as a welfare advocate with the RSL.

Lincoln gave evidence of having met the plaintiff in various circumstances between 1952 and very recent time. The gist of his evidence[72] was as follows:
[72]Having regard both to examination in chief and cross-examination

·He first met the plaintiff in 1952, when the two of them were stationed at Cerberus. They were sporting contestants. They mingled at game’s end. The plaintiff was a good sportsman, enthusiastic about being in the Navy, and keen to get on.
·Other than a brief meeting in 1954, he next met the plaintiff in 1966 when they were stationed at Leeuwin. They had daily contact. The plaintiff, he believed, was a different man; a lot quieter, a lot more serious.
·In this period he saw the plaintiff at his home. The plaintiff was, he would say, a “little bit overbearing” with his children.[73]
[73]T 451
·In this period also he and the plaintiff drank at the plaintiff’s home and at his home. They drank quite a lot. The plaintiff, he would say, drank more than he did. They were drinking beer, spirits and wines.

[335]T 656

It was, he said, more of a fatherly talk than an order which must be obeyed. But he agreed in cross-examination that he supposed he would have been most surprised if, the Captain having said that the ship’s company were not to speak to the press, anyone had done so.[336]
[336]T 657

Further, in cross-examination, the witness mentioned that the Captain had said that there was going to be an enquiry; and said he had no reason to think that the Captain had imposed any prohibition on crew members talking about the collision amongst themselves.

Francis Lyons, a retired Catholic priest who was on board Melbourne in February 1964, gave evidence of hearing a short broadcast by the Captain on the day following the collision. The broadcast, he said:

“... began by saying that there was an army of press and media waiting at Garden Island for the ship to arrive, and that if anybody was besieged by the press they should be careful what they said because the matter would be before the courts by then.”[337]

[337]T 726-7

It was, said Monsignor Lyons, a cautionary talk rather than an order. But in cross-examination he agreed that an announcement by the Captain would be taken pretty seriously by crewmen; and that, whether couched in terms of an order or otherwise, it would be something that the crew would in fact comply with. [338]
[338]T 729

Paul Graham, an Engineer Lieutenant on board Melbourne in February 1964, gave evidence of hearing two broadcasts – one on the morning following the collision, the other before the vessel got to Sydney. This was his evidence in chief:

“It was basically telling us what had happened. The Captain told us what had happened and that we were returning to Sydney; and in the one before we got to Sydney, he once again said that, part of it was that we would probably be asked by the press for comments, and that he asked that we shouldn’t quote his report or his comments to the press.”
Alright. Is your recollection that he referred to the freedom of the crew to speak amongst themselves about the collision? --- Yes.”[339]

[339]T 750

Cross examined, the witness agreed that several weeks earlier, in another trial arising out of the collision, he had given evidence that the Captain had said he should not be quoted if crewmen were “approached by the press or anyone”. [340]
[340]T 751

Thus far I have not mentioned the Captain’s report of what he said. It is contained in a memorandum to the Flag Officer Commanding, H.M. Australian Fleet, dated 19 February 1964[341]:

“38.At about 0900K on Tuesday 11 February, I addressed the ship’s company over the Main Broadcast. Amongst other matters I told them of the ship’s movements so far as they were known to me and explained at some length events leading up to the collision. Later in the day, after directions regarding communications with the press had been received, I gave the ship’s company some advice on this subject and asked that whatever they may say to persistent reporters they should not quote my account given to them earlier that day. I am glad to be able to report that so far as I am aware this confidence has been respected by both Melbourne’s ship’s company and the survivors from Voyager who were on board at the time.”

[341]Part of Exhibit DB6

Notwithstanding the passage of years, I consider that it is possible to arrive at fairly clear conclusions as to what Captain Robertson probably told the crew on 11 February 1964.

First, it is to be noted that the Captain’s report indicates that there were two relevant broadcasts. Almost all the witnesses recalled one only. Probably they conflated the contents of two broadcasts. The short time elapse between events and the Captain’s report tells in favour of acceptance of his chronology.

Second, it is further to be noted that the Captain’s account is in the form, understandably, of a resume. It does not purport to be either exhaustive or word for word.

Third, it is to be observed that the Captain referred to “directions regarding communications with the press [having] been received”. This makes it likely that the Captain would have laid particular emphasis upon crewmen not speaking to the press; and that he would have conveyed a firm wish that what he said should be abided.

Fourth, it is likely that when Captain Robertson first spoke to the crew, and when he later addressed them, he did so against a background of certainty, or at least near certainty, that there would be an extensive enquiry into the disaster. It is therefore likely that this circumstance was mentioned in the context of at least one of the addresses in which, collectively, on the one hand he attempted to bring the crew and Voyager survivors up to date with what was thus far known or supposed about what had occurred, and on the other hand was concerned that his account not be disseminated in advance of the enquiry.

Fifth, whilst for reasons outlined it is likely that Captain Robertson particularly warned crew members against speaking to the press about the matter, I consider it probable that he also warned crew members against speaking about the matter in situations which could lead to the press getting hold of information by indirect means – as, for example, by something unwisely said in an hotel. Bear in mind also that a member of the press would not necessarily so announce himself or herself.

Sixth, it is likely that Captain Robertson’s admonition was couched in terms of not prejudicing or anticipating the enquiry. It is altogether improbable that it conveyed or might reasonably have been thought to convey a warning against talking about the collision into the indefinite future. After all, if the foreshadowed enquiry was held, it was inevitable that the circumstances of the collision would be a matter of detailed evidence and analysis.

Seventh, it is clear, I think, that Captain Robertson did not give a warning or direction that crewmen should not speak about the collision between themselves.

Eighth, it is clear also, I consider, that the Captain did not specifically warn crewmen that they should not speak to family or friends about the collision.

Ninth, what I have just said does not mean that Bate did not give a warning to his sailors in more expansive terms. To have done so would have presented sailors with a simple criterion rather than exposing them to decision-making in particular instances if they were asked about the collision.

Tenth, even if a warning in more expansive terms was given by Bate or some other divisional officer and even if that became scuttlebutt, I do not consider that, sensibly, it should have been understood as precluding private discussion between a sailor and his family. But even if it did lead to such an understanding in the case of an individual sailor, it is another question whether the defendant should be held to an understanding deriving from the inaccurate paraphrase by a divisional officer of what Captain Robertson had told the crew..

Eleventh, even if McCracken gave a warning in more expansive terms to his sailors – compare his evidence and that of Robbins – I am satisfied that the plaintiff did not hear it; and I am not satisfied that any scuttlebutt which the plaintiff did hear had its origin in anything said by McCracken.

Twelfth, I consider it very clear that Captain Robertson did not warn the crew against speaking to medical practitioners about the collision.

It is next convenient to mention certain notorious facts:

·The Royal Commission on the loss of HMAS Voyager commenced on 14 February 1964 and concluded on 26 August 1964. The Royal Commissioner, Sir John Spicer presented his report on the latter date.
·The Royal Commission on the statement of Lieutenant Commander Cabban and matters incidental thereto commenced on 31 May 1967 and concluded with the presentation of its report on 13 March 1968.
·The report of the first Royal Commission apportioned blame to Captain Robertson. The report of the second Royal Commission cleared the Captain of any fault. The circumstances in which the second Royal Commission came to be called were at least very unusual.

I turn to evidence given by the plaintiff and his wife about their not discussing the collision. The plaintiff said that he reacted to “the consensus” that they were not to speak about the collision to anybody by refusing to discuss it with his wife.[342] In cross-examination there was this question and answer:

“And so, you’ve said in your evidence you didn’t speak to your wife about it, but that was a matter of your personal choice wasn’t it? --- Yes, I guess I could have spoke to her if I had wished to.”[343]

[342]T 25, DBE

[343]T 89 DBE

Mrs Stafford gave evidence that the plaintiff never in fact discussed the collision with her. She said also that:

“Sorry, one time he did tell me how he was told not to discuss it.”[344]

She did not say when, even approximately, that remark was made.

[344]T 65

The plaintiff gave evidence that in the month or so following the collision he met up with members of the crew, and that there was discussion concerning those lost in the collision as well as talk about what had happened. I have referred to the threads of that evidence a little earlier.

Other witnesses gave evidence that the plaintiff did not in fact talk much about the collision over the years. I have earlier referred to some of that evidence. I consider that it was reliable. It is another matter why the plaintiff did not much discuss the incident.

The burden of the Reply, relevantly, is that the defendant induced the plaintiff to assume that he was forbidden to speak with anybody about the collision; that the plaintiff acted upon that assumption by avoiding discussion with people about it; that (perhaps this is alleged), he avoided making timely complaint about his symptoms, or obtaining timely advice or treatment in connection therewith; and that his silence was to his detriment.

In my opinion the plaintiff did not make out that case. The following considerations are pertinent: first, for reasons described at length whatever statements the Captain made did not contain nor could have been reasonably understood to contain a prohibition upon crewmen speaking to anyone about the collision. On no view did any such statement extend to fellow crewmen on Melbourne, and some of the plaintiff’s evidence suggests that he did not understand there to be any such prohibition. Further if the plaintiff believed, contrary to the import of some of his evidence, that he was at least forbidden to speak with his wife about the collision, that was neither said by the Captain nor could reasonably have been derived from what the Captain said. Nor should any more expansive warning by a divisional officer, if the plaintiff came to learn of it, reasonably have been so construed. Further again, any statement by the Captain that the crew should not speak about the collision, or of what he told them about it, was almost certainly limited temporally – that is, by reference to the likely Royal Commission.

Second, the plaintiff did not altogether avoid discussion about the collision. At least he was present at, and he may well have participated in, discussion with crewmates about it in the period immediately thereafter. Discussion with his peers was, on the evidence, probably the best support that he could have got.

Third, the plaintiff did not in fact report his symptoms to a doctor, or seek advice or treatment, for many years. But the plaintiff gave no evidence that such conduct reflected his belief that he could not unburden himself to a doctor about the collision and its effect upon him. It seems clear, indeed, on the plaintiff’s case that he did not relevantly consult with a doctor because he maintained that relevantly there was nothing wrong with him; or as an avoidance mechanism

Fourth, whilst I have accepted evidence that the plaintiff generally did not much talk about the collision over the years, that is more likely the consequence of his desire to shut the event out of his mind by not recapitulating its circumstances.

Finally in connection with this aspect of the estoppel I should mention paragraph 2(b)(c) of the Reply. The matters there raised can be put to one side in the present connection, for the plaintiff has not satisfied me of circumstances which could make them relevant.

The assumptions that the plaintiff would be treated by the defendant for any injuries which he suffered, that he was not injured in the collision and that it was acceptable for him to drink alcohol in order to forget the collision

In my opinion, it should be accepted, particularly having regard to the divisional officer structure which was described in evidence and the presence of naval chaplains on board some ships and (probably on shore), that the Navy assumed something of a pastoral role in respect of its men as at 1964. Complementary to that role was the provision of naval doctors, both on some ships and on shore. In those circumstances I think that the plaintiff was entitled to assume, speaking generally, that the defendant would treat him for injuries which he sustained in the course of his service and in respect of which he reported to such a doctor.

It is further the case that in certain specific circumstances – enlistment, re-enlistment and discharge – the Navy initiated enquiry whether any injury had been allegedly suffered, and whether the examinee complained of any disability.

Questions may then be framed as follows: First, did the circumstances which entitled the plaintiff to assume that he would be treated for injuries which he sustained and which he reported, the fact that in specific circumstances the Navy initiated enquiry whether injury or disability was present, and the fact that the Navy did not mass-screen or otherwise investigate the state of the plaintiff’s psychological health after the collision - together, or in some lesser combination – each of which alternatives it is convenient to describe as “the circumstances” - constitute an unambiguous representation that the plaintiff had not been injured in the collision?

Second, did the circumstances convey such a representation, intending that the plaintiff act thereon; or were they such that the plaintiff might reasonably have so understood the situation?

Third, did the plaintiff so understand the circumstances, this causing him to assume that he had not been injured?

Fourth, by reason of such assumption, were the circumstances causative of the plaintiff doing or not doing any of the things set out in paragraph 2(h) of the Reply?

In my opinion the answer to the first of those questions is “no”. There is a great difference between a representation by conduct that injury will be treated and a representation by conduct that the possible presence of injury will be investigated. The very limited circumstances in which the Navy embarked upon the latter course did not amount to a plain representation that possible injury would be investigated in all circumstances; rather the contrary. Further, the circumstance that the Navy made a decision not to screen all (Voyager) survivors for possible psychological sequelae was, on the evidence, unknown to the plaintiff. Again, it did not specifically relate to the crew of Melbourne. Finally, see further in a moment, it was a decision which had a rational medical basis. It could not be said to have been an unambiguous representation that a particular seaman had not in fact been injured.

I go to the second of the questions which I framed. In my opinion, whatever way the circumstances which I have mentioned might be put together, the defendant did not intend by conduct to represent that the plaintiff had not been injured in the collision and that he should act upon such representation; nor could the plaintiff reasonably have understood the contrary. What I have already said about the circumstances entitling the plaintiff to assume that he would be treated for injury which he sustained, if reported, and about circumstances in which the Navy initiated enquiry about injury is in point.

Other than that, the Navy undoubtedly made a decision, noted in a Minute dated 16 May 1964, not to carry out psychological assessment of Voyager survivors “on grounds that to treat all the survivors as potential psychiatric cases might well implant such disabilities in minds hitherto free of them”; but decided that there should be “close observation and sympathetic action in the case of a rating showing signs of psychological trauma... any such cases to receive every appropriate assistance and treatment”.[345]
[345]T 740

There was debate in the medical opinion evidence as to what was known in 1964 about what is now called PTSD. That debate was in some respects sterile. The Minute shows that the Navy then understood that there was the potential for “psychological trauma” in the case of Voyager survivors; and that, as the Navy perceived it, treatment was available for such injury.

Focussing for the moment upon the Minute in its specific application to Voyager survivors, the burden of the evidence was that the decision not to psychologically assess all survivors, but to treat those who showed signes of “psychological trauma”, was appropriate to the standards of the day. The evidence was clear that psychological counselling, or “debriefing” of all survivors would not have been in accordance with those standards;[346] and was unlikely to have been helpful. Again, the evidence showed that mass-screening is, in the context of the Australian Armed Forces, a fairly new technique[347]. The evidence was also clear that according to the standards obtaining in 1964 presentation by a sailor to a doctor would have been the usual circumstance which triggered medical investigation and treatment.[348] The evidence, on balance, suggested also that it would have been prudent for a naval doctor upon whom a survivor attended, even for an apparently discrete condition, to have asked questions about the patient’s psychological condition.[349] Finally, the evidence suggested that it was appropriate that officers look for signs of “psychological trauma” in sailors under their command – a concept implicit in the Minute – although the capacity of officers to understand the significance of behavioural patterns could be doubted.[350]
[346]See, for example, Professor McFarlane at T 241-242
[347]Professor McFarlane at T 242
[348]See, for example, Professor Hopwood at T 385-6, 397
[349]See, for example, Professor McFarlane at T319; Professor Hopwood at T400; Professor Burrows at T735-6
[350]See, for example, Professor McFarlane at T 319; Professor Hopwood at T 398-400; Dr Milton at T 594; Professor Shalev at T 776, 796-797

In all, then, applied to Voyager survivors the Minute was consonant with the practice of the day, subject only to the possible criticism that it did not suggest that survivors who attended naval doctors for apparently unrelated conditions might prudently be questioned as to the presence of symptoms of psychological injury. The soundness of the decisions reflected by the Minute removes any suggestion that they were intended to represent that a Voyager crewman who displayed no symptoms of psychological trauma, and who for that reason was not psychologically assessed, was a well man and should act upon an assumption to such effect.

The decisions were confined to the crew of Voyager. The burden of the evidence was that as at 1964 it should have been perceived that some members of Melbourne’s crew – but a lesser percentage than in the case of Voyager’s crew – would suffer psychological injury in consequence of the collision. The debate between the parties was conducted on the footing that the Minute of 16 May 1964 reflected the Navy’s position concerning the crew of Melbourne. Making that assumption, the decisions reflected in the Minute were no less appropriate than in the case of the crew of Voyager. On no view, in my opinion, could it be said to be conduct which, against a background of responsibility and knowledge, was intended to cause the plaintiff to assume, in circumstances where he was not referred for psychological assessment and treatment, that he was psychologically well; and that he should act upon such assumption. Further in my opinion, the Navy’s conduct in the present connection – of which in fact the plaintiff knew nothing - could not reasonably have been understood by the plaintiff to convey a contrary representation.

I go to the third and fourth questions which I identified a little earlier. In my opinion the plaintiff did not make out a case that any conduct of the defendant caused him to assume that he had not been psychologically injured in the collision; or to act upon such an assumption. There was evidence that the plaintiff believed that he had not been injured. But the evidence did not link such belief with any conduct of the defendant whether pleaded by the Reply or as emerged in evidence; and it would not be safe, even if it was theoretically available, to draw an inference that there was such a connection.

The evidence showed, as I noted earlier in these reasons, that the plaintiff in fact attended naval doctors on three occasions in 1964, in each instance after February that year. That circumstance shows his readiness, attested also by visits to naval doctors before and after 1964 – to seek medical attention when he believed that he needed it. Those visits do not sit easily with a case which seeks to found an assumption of wellness upon the Navy not having initiated psychological assessment of the plaintiff subsequent to the collision.

There is nothing to suggest, as I noted earlier, that a naval doctor made any enquiries about possible psychological problems consequent upon the collision on any occasion when the plaintiff attended in 1964. Accepting for argument’s sake evidence that some such enquiries might prudently have been made, albeit that the plaintiff attended for unrelated conditions, the most that could be said is that, conceivably, the failure to enquire demonstrated a want of reasonable care on the part of the defendant. But that is not the same thing as saying that the failure to enquire was intended to lead the plaintiff to assume that he had not been injured in the collision; or that he could reasonably have so understood the situation. Nor, indeed, that the plaintiff made any such assumption by reason of those circumstances. The same observation may be made in respect of the plaintiff’s relatively few attendances upon naval doctors between 1965 and 1971; remembering also the medical records that were completed and upon which the defendant relied.

That leaves the issue of alcohol. The thrust of the pleaded case is that the defendant knew or should have known that a common consequence of psychological injuries induced by trauma was self-medication by alcohol. Next, that in the context of the defendant’s responsibility for the plaintiff as pleaded by paragraph 2(a) of the Reply and the actual or constructive knowledge pleaded by paragraph 2(b), the defendant induced the plaintiff to assume that it was acceptable to drink alcohol in order to forget the collision. And then, that the plaintiff drank to avoid the symptoms of PTSD, this (implicitly) being one reason why he did not discover that he was suffering from the condition until his claim was statute-barred.

The pleaded case, in my opinion, is grossly at variance with the evidence. At its highest, evidence was given that when the men were disembarking after Melbourne’s return to Sydney some of them were told to have some drinks and forget about what had happened.[351]
[351]Robbins at T 422, 430; compare McCracken at T 572; Bate at T 506-507; Gurnett at T 544-545

Such remarks, even if the defendant could be fixed with responsibility for them, did no more than address the immediate aftermath of a shocking event in the near-recent past. It is really at odds with reality to imagine that, insofar as the plaintiff learned second-hand of any such remark, it caused him to assume that it was alright for him to drink to excess for 35 years - not that, it must be said, the plaintiff gave any such evidence. Again, it would be really at odds with reality to infer that any such remark was intended to induce such an assumption on the plaintiff’s part; or might reasonably have been so understood.

Waiver

As I noted earlier, no submissions were made by plaintiff’s counsel concerning the plea of waiver. It was founded (see paragraph 3 of the Reply) on the same circumstances as were relied upon in connection with the plea of estoppel. The varying judicial views expressed in Verwayen about the nature and sphere of operation of waiver are considered in Meagher, Gummow and Lehane’s Equity Doctrine and Remedies.[352] Whether or not the term has independent content, the great problems for the plaintiff in the present case, it seems to me, are in the first place that by no stretch of the imagination was the defendant’s pleaded conduct directed towards its giving up a right to pursue a s. 5(1)(a) limitation defence; and in the second place, that the plaintiff has not made out the factual building blocks of the plea.
[352]Fourth edition, paragraph 17-140

Summary

It was proved that the late Mr Stafford developed chronic PTSD as a result of the defendant’s tortious conduct in connection with the 1964 collision between Melbourne and Voyager. But his estate cannot recover the damages which I would otherwise award, $255,000, because I have concluded that the action which he commenced, and which his estate continued, is statute-barred. This outcome will no doubt be welcomed by the defendant and be deplored by many others. It is the fact that over the years, and even in recent years, a very considerable number of cases arising out of the collision have been successfully litigated by crew members of both vessels. Yet a considerable number of cases remain to be heard. My Reasons, if correct, are likely to affect, adversely to plaintiffs, the fate of some but not all of those cases.[353] It cannot be thought satisfactory that the future disposition of litigation arising out of the Melbourne/Voyager collision should be, in effect, a lottery the outcome of which in individual cases may well depend upon the vagaries of pleading.

---

[353]Because in some instances the defendant has admitted the applicability of the qualifying element of s. 5(1A); whilst in other cases it has denied it. In those cases in which the defendant has denied it, the pleas of estoppel and waiver which I have considered in these Reasons have most often been pleaded.

CERTIFICATE

I certify that this and the 151 preceding pages are a true copy of the reasons for Judgment of Ashley J of the Supreme Court of Victoria delivered on 22^nd June 2005.
DATED this 22^nd day of June 2005.
________________________

Associate to Justice Ashley

o Cerberus	13 February 1951	- 4 August 1952
o Melville	5 August 1952	- 28 July 1953
o Penguin	29 July 1953	- 14 January 1954
o Cerberus	15 January 1954	- 23 September 1954
o Anzac	24 September 1954	- 26 January 1957
o Leeuwin	27 January 1957	- 24 March 1957
o Nirimba	25 March 1957	- 7 April 1959
o Tarangau	8 April 1959	- 10 April 1961
o Albatross	11 April 1961	- 8 July 1962
o Nirimba	9 July 1962	- 2 September 1962
o Albatross	3 September 1962	- 27 December 1962

[2005] VSC 200

22 June 2005